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FILE 5434

Adversary System
A. Unfair prejudice and probative value
1. Rule 401: Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.
2. Rule 402: Relevant evidence is admissible unless any of the following
provides otherwise: the United States Constitution; a federal statute; these
rules; or other rules prescribed by the Supreme Court.
3. Rule 403: The court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence
4. Michelson v. United States (1948)
a) Facts: Michelson was charged with bribing a federal revenue
agent. At trial, five witnesses were called to show Michelson had a
good reputation in the community. On cross the witnesses were
asked if they had heard Michelson had been convicted twenty
years prior for a violation of trademark law. Two said that they had
not. The witnesses were asked if they knew Michelson was
arrested for receiving stolen goods.
b) Issue: Whether a prior conviction, unrelated to the current charge,
can be mentioned during cross-examination.
c) Rule: (1) When a defendant calls witnesses to testify to their
character, the door is open to the prosecutor to ask the witnesses
about prior convictions.
● Bascuas issue (2): Whether we should change the common
d) Holding/Reasoning: Once the defendant opens the door by
bringing forth positive character evidence, the prosecution may
bring its own evidence as to the reputation of the defendant in the
community as well as for the limited purpose of testing the
qualifications of the witness to reliably testify about the
defendant’s reputation.
5. Old Chief v. United States (1997)
a) Facts: Old Chief was charged with violation of a federal statute
making it illegal for a convicted felon to carry a firearm. Old Chief
had been previously convicted of a felony. He sought to prevent
the prosecution from proffering any other evidence about his
conviction because of its prejudicial effect (403) and claiming the
prosecution could only mention he had been imprisoned on a crime
for no longer than one year and not admit the entire record.
(1) Elements for 813 USC 922(g)(1) felon, possession, and
b) Issue: Whether the prosecution can admit a defendant’s entire
criminal record when informing the jury the defendant is a felon is
c) Rule: Evidence is inadmissible if its unfairly prejudicial effect
outweighs its probative value.
d) Holding/Reasoning: Admitting the defendant’s entire criminal
record to show he is a felon is unfairly prejudicial when the
prosecution only has to show he is a felon. The jury could have
made an improper decision based on believing the defendant is a
violent man. Admitting the record has little probative value
because the defendant stipulated in the record he was a felon.
B. Limited admissibility & completeness
1. Rule 105: limiting instructions can be given to the jury by the judge when
evidence is admissible for one purpose but not admissible for another
2. Rule 106: When a party introduces a written/recorded statement in part,
the other party can request, at that time, to enter the entire
writing/recorded statement.
3. United States v. Boylan (1990)
a) Facts: The defendant (Boston PD) was charged with racketeering
when members of the Boston PD accepted bribes. The prosecution
wanted to admit records of where the officers were placed during
the time of these bribes and the defendants wanted their entire files
(promotions, etc) to be admitted into evidence.
b) Issue: Whether a document is incomplete when it is part of a larger
c) Rule: An entire file does not need to be admitted when only parts
of the file are relevant and can be read to the jury without causing a
jury member to believe there is missing information.
d) Holding/Reasoning: The document was not incomplete because the
document admitted into evidence included all the relevant
information, it does not matter that it was part of a bigger file.
C. Character evidence
● Evidence revealing character is admissible if it also relates to a
legitimate point
○ While 404(a) excludes evidence that relates only to character, Rule
404(b) clarifies that if the same evidence is also relevant to some
legitimate fact in the case, it is admissible. Consequently, parties to
a case have an incentive to make creative arguments tying
evidence of bad character logically to a factual issue. However,
during closing arguments, cannot use that evidence to talk about
D. Other acts evidence offered for proper purpose
1. Rule 404: While 404(a) excludes evidence that relates only to character,
Rule 404(b) clarifies that if the same evidence is also relevant to some
legitimate fact in the case, it is admissible.
2. Huddleston v. United States (1988)
a. Facts: Huddleston was charged with possession of stolen goods
and selling stolen videocassette tapes. The prosecution sought to
introduce evidence of two similar acts under 404(b)--evidence of
televisions and $20k of appliances to an undercover FBI agent for
a lower price. The trial court allowed the admission of the similar
prior acts and Huddleston was convicted of possession of stolen
b. Issue: Whether, before admitting prior acts evidence, the court
must make a preliminary finding that the prosecution has proved
prior act by a preponderance of the evidence?
c. Rule: There does not need to be a preliminary finding by the court
that evidence is proved by a preponderance of the evidence to be
admissible under 404(b).
d. Holding/Reasoning: The inquiry the court must make before
admitting similar acts evidence is whether the evidence is
probative of a material issue other than character. The evidence
that the petitioner was selling the televisions was relevant under
the Government's theory (low price of televisions = stolen) only if
the jury could reasonably find the televisions were stolen.
● Here, the prior bad acts evidence was used to show
knowledge that the video cassettes were stolen.
3. Dowling v. United States (1990)
a. Facts: The defendant was on trial previously for robbing a home
with his friend. The eyewitness saw the defendant without his skimask on, but the jury acquitted the defendant. The jury in the
previous trial did not find whether the defendant was actually
present during the robbery and just acquitted him of the actual
robbery. The defendant was later arrested for robbing a bank with
his friend again wearing a ski-mask and carrying a gun. During
trial, the prosecution sought to introduce testimony of the previous
robbery. The purpose of the testimony was to (1) link the
defendant with the friend; (2) identify the similarities between the
gun and the mask.
b. Issue: Whether a defendant’s acquittal to a previous trial can be
brought up during a different trial.
c. Rule: When a specific issue has not been litigated in a previous
trial, collateral estoppel and double jeopardy does not apply.
d. Holding/Reasoning: The testimony should have been allowed in
because there was no violation of the double jeopardy clause nor
collateral estoppel because (1) the Henry incident was prior
conduct and (2) even if it was barred, the jury in Henry's case did
not actually decide whether Henry had been in the house or not.
4. United States v. Varoudakis (2000)
a. Facts: Defendant was arrested for arson of his business. During
trial, the prosecution admitted testimony of his ex-girlfriend who
testified the defendant had previously set his car on fire to avoid
b. Issue: Whether prior bad acts evidence is permissible when it is
relevant to an essential issue but unfairly prejudicial.
c. Rule: To be admissible, prior bad acts evidence must have special
relevance to an essential issue (such as intent, knowledge, plan,
identity, or absence of a mistake) and the probative value cannot be
substantially outweighed by the danger of unfair prejudice.
d. Holding/Reasoning: Even though the bad acts evidence was
relevant in establishing the relationship between Britt and
Varoudakis, its probative value is substantially outweighed by the
danger of unfair prejudice.
● Co-conspirator rule cannot apply here because the
prosecution could not show the defendant was conspiring to
commit arson.
● Common scheme or plan would not apply: if he had
conducted six arsons in three months then maybe
5. United States v. Lucas (2003)
a. Facts: Lucas was indicted for possession of cocaine found in the
car he was in. In a motion in limine, the court excluded any
mention of Presley, who Lucas claimed owned the drugs and had
prior access to the car the drugs were found in. A few days prior to
trial, a certified copy of a conviction of Morell Presly was
obtained, which reflected that Presly had previously been
convicted of possessing cocaine with intent to distribute.
b. Issue: Whether evidence to show the propensity of someone other
than the defendant is admissible to prove the defendant's
c. Rule: Under rule 404 "reverse 404(b)," prior bad acts are generally
not considered proof of any person's likelihood to commit bad acts
in the future and so such evidence must demonstrate something
more than propensity.
d. Holding/Reasoning: A prior conviction does not demonstrate that
Presley is likely to have sold cocaine again. If, instead, it was
shown that Presley had borrowed someone else's car in which to do
the prior drug deal or if he had packaged the cocaine in the same
way and had left it under the passenger's seat in the same way, the
evidence of his prior drug deal might have been sufficiently
● Excluding the sexual assault that Lucas had experienced to
explain why she was nervous when the cops stopped her
was harmless error because though it is relevant to suggest
that her behavior was not because she was guilty, Lucas's
nervousness upon being faced by the police was not crucial
to the prosecution's case.
E. Character in sex offense cases
1. Rule 412: evidence can’t be admitted in a civil or criminal case showing a
victim’s prior engagement of sexual acts. Except in instances listed in (b)-cases involving sex crimes
2. Rule 413: the court in a criminal case may admit evidence the defendant
committed other sexual assault acts.
3. Rule 414: the court in a criminal case may admit evidence the defendant
committed previous molestation acts.
4. Rule 415: the court in a civil case may admit evidence the defendant
committed previous sexual assault or child molestation.
● Rules 413-415 are subject to 403 inquiry for probativeness.
5. Iowa v. Cox (2010)
a) Facts: Cox was arrested for sex abuse of his younger cousin. The
state presented evidence of Cox’s prior sexual abuse to two others
cousins. The abuse took place at the grandmother's home. The
defendant motioned for limine to exclude the prior-bad act
testimony because he claimed the exception for sex crimes that
allows propensity arguments is only for when the victim is the
same. The court allowed the evidence to show a “pattern of
behavior” and “MO.”
b) Issue: whether the exception to propensity evidence for sex crimes
is limited to when the victim is the same in all instances.
c) Rule: The victim does not have to be the same in all instances to
admit prior bad act testimony as long as the testimony relates to a
legitimate issue in the case.
d) Holding/Reasoning: The evidence was improperly admitted to
show propensity. There was no legitimate issue that the evidence
could go towards.
● State's arguments and what the Court held:
○ Opportunity, preparation: Cited to 5.404(b)
exception which says "some other purposes for
which bad acts are admissible."
■ The testimony of A.L. and T.C. does not
establish opportunity or preparation for the
offense allegedly committed against J.M.
because A.L. and T.C. testified regarding
separate incidents at separate times.
○ Common scheme or plan: The state argued to the
trial court that because the victims of the charged
and uncharged conduct were all cousins, and some
of the abuse took place at the same location and
stage in their lives, it demonstrated a common
scheme or plan.
■ The test for common scheme or plan is not
simply a pattern of prior bad acts. "Common
scheme or plan means more than the
commission of two similar crimes by the
same person." Here, there has been no
suggestion of a common scheme or plan that
would necessitate the admissibility of A.L.'s
and T.C.'s testimony to complete the story of
the crime against J.M. The evidence
demonstrates Cox essentially committed
crimes of availability against his cousins,
which demonstrates nothing more than
○ Modus operandi: a distinct pattern or method of
procedure thought to be characteristic of an
individual criminal and habitually followed by him.
Have also used modus operandi to admit evidence
for the legitimate issue of countering a defense of
consent in sexual assault. When evidence is
admitted to prove identity or negate the defense of
consent, the evidence is relevant to a legitimate
issue. Here, identity was not an issue because J.M.
was able to identify Cox, and Cox did not raise
consent as a defense.
○ Motive, intent: Prior bad acts evidence may be
relevant to show touching was accidental. Also
allowed to show intent to commit sexual abuse.
■ Here, the State was not required to prove
specific intent, only that the alleged sexual
abuse occurred.
F. Relevance of habit
1. Rule 406: Evidence of a person’s habit or an organization’s routine
practice may be admitted to prove that on a particular occasion the person
or organization acted in accordance with the habit or routine practice.
G. Evidence excluded for policy reasons
1. Rule 407: when measures are taken following an injury or harm, the
changes are not admissible to prove there was warning or negligence, but
can be admitted to show impeachment or ownership.
2. Rule 409: Evidence of furnishing, promising to pay, or offering to pay
medical, hospital, or similar expenses resulting from an injury is not
admissible to prove liability for the injury.
3. Rule 411: Evidence that a person was or was not insured against liability
is not admissible to prove whether the person acted negligently or
otherwise wrongfully. But the court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice or proving agency,
ownership, or control.
4. Rule 408: Evidence of the following is not admissible to show an amount
($) in dispute or to impeach based on a prior inconsistent statement: (1)
offering consideration; (2) conduct or statements during negotiations. (B)-The court may admit this evidence for another purpose, such as proving a
witness’s bias or prejudice, negating a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution.
5. Rule 410: In a civil or criminal case, the following is not admissible
against the defendant: (1) a guilty plea that was later withdrawn; (2) a nolo
contendere plea; (3) a statement made during a proceeding on either of
those pleas under Federal Rule of Criminal Procedure 11 or a comparable
state procedure; or (4) a statement made during plea discussions with an
attorney for the prosecuting authority if the discussions did not result in a
guilty plea or they resulted in a later-withdrawn guilty plea.
6. Subsequent remedial measures
a) Columbia & Pudget Sound RR Co. v. Hawthorne (1892)
(1) Facts: The corporation’s saw-mill fell on top of the plaintiff
causing injury. The plaintiff sued the corporation for unsafe
and detective machines claiming a loose bolt caused the
injury. The court allowed evidence the corporation had
fixed these errors following the accident.
(2) Issue: Whether an alteration following an incident is
admissible as evidence of negligence.
(3) Rule: Evidence of a change or repair to property or
equipment that injured someone is not relevant to show
negligence in its original construction.
(4) Holding/Reasoning: It would be unfair to claim an
alteration made after an accident means the corporation
knew before the accident that there was an issue. The
corporation could have become aware of the issue
following the accident and even though they were
following guidelines provided they still made the change to
make the product safer.
7. Payment of medical expenses and insurance coverage
● Rules 409 and 411 restate the common law that neither an offer to
pay medical bills after an incident nor the fact that a person insured
against an accident is relevant to liability. They are founded as
much on considerations of relevance as on public policy to
encourage empathy or responsibility.
8. Civil settlements and plea negotiations
● Rule 408 furthers the goal of encouraging civil litigants to settle
their cases without a trial. An offer to settle cases is also not very
probative of the issue of fault. It implies only a desire to be willing
to pay a certain amount to get rid of the case.
● Rule 410 similarly makes inadmissible statements made during
plea negotiations and proceedings related to guilty pleas that are
later withdrawn. A nolo contendre plea is a special plea permitted
in certain cases, primarily very minor ones, in which the defendant
neither admits nor denies the charges but accepts the punishment,
usually a small fine. Rule 410 applies only to discussions with the
prosecutor or someone expressly authorized to negotiate on the
prosecutor's behalf. Statements to police made without the
prosecutor's authorization to negotiate are not covered.
○ Rule is no longer necessary because defendants have
incentives to plead guilty. In 1987, a new federal
sentencing scheme went into effect that required that
defendants who were convicted after trial were guaranteed
a substantially higher sentence--usually about 40% higher-than if they had pled guilty.
A. Bias
1. Rule 607: Any party, including the party that called the witness, may
attack the witness’s credibility.
2. Rule 608: (a) If a witness’ character for truthfulness has been attacked,
testimony can be presented to show the witness is truthful; (b) extrinsic
evidence is not admissible to show a witness’ character for truthfulness.
3. Rule 609: (a)(1)(A)- in a crime punishable by death or imprisonment for
more than a year, can attack the character for truthfulness of a witness who
is not the defendant (civ. or crim); (a)(1)(B)- must be admitted in a
criminal case in which the witness is a defendant, if the probative value of
the evidence outweighs its prejudicial effect to that defendant; (b)- limit
on using evidence after 10 years; (c)- evidence of a conviction not
admissible if pardoned, annulled, or found innocent; (d) juvenile
4. Rule 610: Evidence of a witness’s religious beliefs or opinions is not
admissible to attack or support the witness’s credibility.
5. Rule 611: the court should exercise control over the witnesses to ensure
they are not harassed or face undue embarrassment; to make sure time is
not wasted; and make procedures effective for telling the truth.
6. Alford v. United States (1931)
a) Facts: Petitioner was convicted of fraud. The government called a
former employee of the petitioner. On cross, the defense tried to
ask where the employee lived (he was in jail) to show the witness
was biased. The Court did not allow this cross.
b) Issue: Whether an attorney on cross-examination may ask a
witness where he lives to establish that he made a deal with the
government and is currently in custody.
c) Rule: The scope of cross examination is broad enough to allow
questioning intended to expose a witness' bias.
d) Holding/Reasoning: The cross-examination should have been
allowed to show the witness’ bias. The fact of being in criminal
detention might motivate the witness to falsify his testimony to
appease the authorities who detained him. The jury was entitled to
receive this information, which was material as to the witness'
credibility. It did not matter whether the witness actually
committed the crime for which he was detained.
7. Davis v. Alaska (1974)
a) Facts: Davis was charged with theft. An eyewitness identified
Davis. The eyewitness was a minor with a criminal record for
burglary and was on probation at the time. Prior to trial, the state
moved for a protective order to prevent Davis from questioning the
minor about his record. The court granted the order based on state
laws that prohibited the use of juvenile adjudications against an
individual in future proceedings. During trial, Davis crossexamined the minor asking about his state of mind and if he had
ever been questioned like that by the police, which he responded
no to. The judge denied further questioning.
b) Issue: does the defendant’s 6th amendment right to impeach a
witness through cross-examination outweigh a state’s interest in
maintaining a juvenile's criminal record.
c) Rule: A defendant has a constitutional right to confront the
witnesses against him regardless of how old the witness is.
d) Holding/Reasoning: The questioning of the witness was a
constitutional right to Davis guaranteed under the 6th amendment.
Allowing the questioning would have revealed the witness had a
reason to lie on the stand since he was on probation. He would
have felt pressure to identify a suspect in fear that he would be a
suspect himself. The protection of the juvenile record was not as
important as protecting Davis’s 6th amendment right.
8. United States v. Abel (1984)
a) Facts: Abel was charged with bank robbery. One of his cohorts
pled guilty and agreed to testify against Abel. Abel sought to rebut
that testimony by introducing another person’s testimony who
stated the cohort stated he was going to testify falsely against Abel.
The prosecution sought to bring the cohort back to testify that Abel
and his friend were in a secret prison gang that required its
members to perjure on the stand for each other.
b) Issue: Is evidence that a witness and a defendant are in a gang that
requires perjury admissible to show bias.
c) Rule: Proof of a witness’s bias is almost always relevant and
evidence of such bias is admissible unless its probative value is
substantially outweighed by its prejudicial effect.
d) Holding/Reasoning: the testimony from the friend about what the
cohort said is biased because the gang requires its members to
perjure for each other. By admitting the information about the
gang, it shows it is probable the friend is lying. It should be
admitted under 403 because the bias here is very probative.
B. Character for truth and veracity
1. United States v. Abair (2014)
a) Facts: Abair was originally from Moscow and had a bank account
there. She moved to the United States and tried to transfer her $ in
the Moscow account to the US but could not so she withdrew
money little by little and deposited it in her local bank. She made 8
deposits at her local bank--all below the $10k limit at which
currency reporting requirements kick in. In cross-examination, the
prosecutor asked Abair about her 2008 joint tax return and
FAFSA. Abair's attorney objected but the prosecutor said he
believed Abair misrepresented her business expenses on the tax
return and lied on her student aid applications about her business
income and assets. He intended to attack her truthfulness.
Abair's ex-husband had testified that he was the one who filled out
the tax return and that FAFSA allowed her to skip questions about
her assets by imputing the IRS website login. The Court allowed
the evidence in.
b) Issue: Whether extrinsic evidence is admissible to show a
defendant’s character for truthfulness.
c) Rule: Rule 608(b) allows cross-examination about specific
instances of a witness' conduct if they are probative but prohibits
extrinsic evidence to prove such instances.
d) Holding/Reasoning: The FAFSA filing form was inadmissible
because it was extrinsic evidence.
C. Specific impeachment
1. Harris v. New York (1971)
a) Facts: Petitioner was charged for selling drugs to an undercover
officer twice. At the trial, Petitioner admitted knowing the officer
but claimed he sold him baking soda to defraud him, not drugs. On
cross-examination, the petitioner was asked whether he made
contradicting statements to the police following his arrest and he
said he could not remember. He was impeached and the trial court
instructed the impeaching statements could go only to credibility
not guilt.
b) Issue: Whether a defendant's credibility may be impeached by nonMirandized statements.
c) Rule: A defendant's credibility may be impeached by nonMirandized statements, even if the statements cannot be used in the
d) Holding/Reasoning: Petitioner's credibility was properly
impeached by use of his earlier conflicting statements. If the court
let the defendant lie, that would affirmatively mislead the jury.
D. Forbidden impeachment
1. United States v. Mezzanatto (1995)
a) Facts: Defendant was arrested for drug charges. He attended a
meeting to discuss cooperating with authorities where he agreed
that any statements made could be used to impeach him in trial.
During the meeting, the defendant made statements that he knew
the package he sold to the undercover cop had drugs in it. Later at
trial, the defendant denied having this knowledge and he was
b) Issue: May a defendant waive the Federal Rules (11(e)(6) and 410)
prohibition on introducing at trial statements made during plea
c) Rule: A defendant’s waiver of the plea bargaining rules’
exclusionary protection is enforceable unless the defendant can
prove he agreed to the waiver involuntarily or unknowingly.
d) Holding/Reasoning: The defendant cannot show he did not
knowingly and voluntarily waive this right during the meeting.
Because he waived this right and there is no reason to assume the
right could not be waived, the defendant’s statements made during
the plea bargain were admissible to impeach the witness.
A. Rule 901: to authenticate evidence, the proponent must produce extrinsic
evidence that the evidence is what the proponent claims it is.
B. Rule 902: some items are self-authenticating and do not need extrinsic evidence to
admit, such as public records.
C. Writings and recordings
D. Physical evidence
1. Vermont v. Allcock (2020)
a. Facts: Police officers responded to a call that a man was stabbed in
Defendant’s home. While the officers were investigating,
Defendant, her boyfriend, and son waited in the car. The officers
asked the son to answer questions but Defendant refused and
punched and kicked the officer. She was charged for assaulting the
officer and at trial, Facebook messages that came from a person
with the Defendant’s name that inculpated the Defendant. The
police were sent screenshots from the recipient of the messages
and they asked Facebook for the account record. The record listed
the account holder's name, email addresses, phone numbers, and IP
address. There was no testimony on whether the email, phone #,
and the IP address belonged to Defendant.
b. Issue: Whether the Facebook messages were admissible.
c. Rule: In order for messages to be admissible, they must be
d. Holding/Reasoning: The Facebook messages in this case were not
admissible because they were not authenticated.
● What state could have done:
○ State could have called the recipient of the
messages as a witness, asking him how he knew the
defendant and why he believed the messages were
from her.
○ State could have presented evidence that the
Facebook page associated with the account in
question had distinct information or personal photos
not in the public domain.
○ State could have connected the IP address to the
○ State could have presented evidence that the
messages contained information about the events
leading to the defendant's arrest that were not in the
public domain.
Best evidence rule
A. Rule 1001: defines writing, recording, photograph, original, and duplicate.
B. Rule 1002: An original writing, recording, or photograph is required in order to
prove its content unless these rules or a federal statute provides otherwise.
C. Rule 1003: A duplicate is admissible to the same extent as the original unless a
genuine question is raised about the original’s authenticity or the circumstances
make it unfair to admit the duplicate.
D. Rule 1004: an original is not required if: all originals are lost or destroyed; an
original cannot be obtained; the party whom the original would be offered had
control over it and failed to produce it; or the writing, recording, or photograph is
not closely related to a controlling issue.
E. Rule 1005: The proponent may use a copy to prove the content of an official
record if these conditions are met: the record or document is otherwise
admissible; and the copy is certified as correct in accordance with Rule 902(4) or
is testified to be correct by a witness who has compared it with the original. If no
such copy can be obtained by reasonable diligence, then the proponent may use
other evidence to prove the content.
F. Rule 1006: The proponent may use a summary, chart, or calculation to prove the
content of voluminous writings, recordings, or photographs that cannot be
conveniently examined in court. The proponent must make the originals or
duplicates available for examination or copying, or both, by other parties at a
reasonable time and place. And the court may order the proponent to produce
them in court.
G. Rule 1007: The proponent may prove the content of a writing, recording, or
photograph by the testimony, deposition, or written statement of the party against
whom the evidence is offered. The proponent need not account for the original.
H. Rule 1008: in a jury trial, the jury determines — in accordance with Rule 104(b)
— any issue about whether: (a) an asserted writing, recording, or photograph ever
existed; (b) another one produced at the trial or hearing is the original; or; (c)
other evidence of content accurately reflects the content.
I. Day v. Delaware (1972)
a. Facts: The police gave a government informant two five dollar
bills with serial numbers on it, which were recorded, to purchase
marijuana from Defendant. The Defendant was arrested and a
subsequent search of his body revealed one of the $5 bills and
another of the bills was found in a cash register at a store the
Defendant had just left.
b. Issue: Whether the government was required to produce the two $5
bills at trial.
c. Rule: The best evidence rule only requires the original writing,
recording, and photograph.
d. Holding/Reasoning: The $5 bills did not have to be produced.
Here, the actual writings on the five dollar bills were immaterial.
The only material point was the identification of the particular bills
through the serial numbers recorded by the patrolman.
(1) Is it hearsay?
(2) Is it testimonial? (Only in criminal cases + for the defendant)
● If testimonial, Confrontation Clause applies
(3) Is it admissible under some exception?
Doctrine of Non-complaint:
1. Identify a person or place where people normally go to complain
2. Significant period of time
3. Noone complains
● Allows inference that someone would have complained so in working order.
A. Defining hearsay
1. Stoddard v. Maryland (2005)
a) Facts: Stoddard was indicted for murder of three-year-old Calen.
Along with watching Calen, Stoddard was also watching eighteen
month old Jasmine. During trial, Jasmine’s mom testified that
Jasmine stated “Is Erik going to get me.” The defense argued the
statement was hearsay and it was overruled.
b) Issue: Whether a question is a statement for hearsay purposes.
c) Rule: To determine whether a statement is hearsay, the court must
look at what the proponent of the evidence is using the statement
for. (implied assertion doctrine)
d) Holding/Reasoning: Jasmine’s question was hearsay. Jasmine did
not need to intend to assert anything by her question, what matters
is what the government was using her statement for.
B. Hearsay and the confrontation clause
1. Crawford v. Washington (2004)
a) Facts: Crawford stabbed Lee. Crawford claimed he stabbed Lee
because he was upset over a previous encounter where Lee tried to
rape Sylvia, Crawford’s girlfriend. Crawford claimed he acted in
self-defense, but Sylvia, in a recorded statement to the police,
stated it was not self-defense. She did not testify in court because
of state marital privilege. The prosecution sought to admit the
recording and Crawford claimed this violated his confrontation
b) Issue: Whether testimonial statements are admissible when the
defendant has not had an opportunity to cross-examine the witness.
c) Rule: Testimonial statements of witnesses absent from trial are
admissible only when the declarant is unavailable, and only where
the defendant has had a prior opportunity to cross examine.
d) Holding/Reasoning: Sylvia’s statements should not have been
admitted because the defendant did not have a prior opportunity to
cross-examine Sylvia.
2. Davis v. Washington (2006)
a) Facts: Davis’s ex-girlfriend called the 911 operator asserting Davis
was hurting her. She identified Davis by his name. At trial she did
not testify but the judge allowed the recording to be played. Davis
claimed playing the recording violated his confrontation clause.
Police responded to a domestic disturbance at Hammon’s home.
They found Hammon alone on the porch and went inside the home.
There were pieces of glass on the floor. Some police officers
stayed with the husband, who was inside, and another officer had
Hammon fill out a battery affidavit.
b) Issue: Whether a call to a 911 operator is testimonial and thus
subject to the confrontation clause.
c) Rule: Questions to aid in an emergency are not testimonial.
d) Holding/Reasoning: A testimonial statement is one "given or taken
in significant part for purposes of preserving it for potential future
use in legal proceedings," "where the motivations of the questioner
and declarant are the central concerns." Here, the statements were
not testimonial because the central concern was determining the
danger to the victim and the police during the ongoing emergency,
not for future legal proceedings. So, the 911 recording was not
subject to the confrontation clause.
● Unlike Davis, where the statements were taken
when McCottry was alone, not only unprotected by
police (as Amy Hammon was protected), but
apparently in immediate danger from Davis. Amy's
narrative of past events was delivered at some
remove in time from the danger she described. In
cases like this, where Amy's statements were
neither a cry for help nor the provision of
information enabling officers to end a threatening
situation, the fact that they were given at an alleges
crime scene and were "initial inquiries" is
3. Michigan v. Bryant (2011): new test for emergency statements
a) Facts: Police officers responded to a radio dispatch that a man had
been shot. When they got there, they saw Covington had a gunshot
wound. He stated that he was shot through the backdoor of
Bryant’s house when he tried to leave. Covington was transported
to the hospital, where he died. Police went to Bryant’s house and
saw the gunshot hole at the door and Covington’s identification on
the floor. At trial, the statements Covington made to the police
were admitted.
b) Issue: Whether the statements Covington made to the police were
admissible because there was an emergency.
c) Rule: When the primary purpose of interrogation is not to create a
record for trial, any statements made are not testimonial and thus
the Confrontation Clause does not apply.
d) Holding/Reasoning: Because the circumstances of the encounter as
well as the statements and actions of Covington and the police
objectively indicate that the "primary purpose" of the interrogation
was "to enable police assistance to meet an ongoing emergency,"
Covington's identification and description of the shooter and the
location of the shooting were not testimonial hearsay.
● To figure out the primary purpose, have to look at the
primary purpose of the police in asking questions and of the
victim answering.
● DISSENT: It’s the declarant’s intent that matters. After
Covington answered what happened and when, police
would follow up with questions such as "How tall is he"
and "How much does he weigh." From Covington's
perspective, his statements had little value except to ensure
the arrest and eventual prosecution of Richard Bryant. It
was entirely beyond imagination that Bryant would fire
again when Covington was surrounded by 5 officers. And
Covington knew the shooting was the work of a drug
dealer, not a spree killer. Covington knew the police were
investigating the past crime, not his medical need and so at
one point even asked "when is the EMS coming?"
4. Ohio v. Clark (2015)
a) Facts: Clark (Dee) lived with his girlfriend T.T. and her children
L.P. and A.T.. When L.P. went to school he informed the teacher
that Dee hit him. Clark came to school and denied the allegations.
Clark was later arrested. During trial, L.P.’s statements were
admitted. The child did not testify because the state’s law found
children under ten to be incompetent. Clark moved to exclude the
testimony as violating his confrontation clause. The court found
the statements were non-testimonial.
b) Issue: Whether statements to persons other than law enforcement
officers are subject to the confrontation clause
c) Rule: Statements to non-law enforcement officers are not
testimonial unless they are created for future legal proceedings.
d) Holding/Reasoning: There was an ongoing emergency here to
determine whether L.P. could be released into Dee’s care; thus, the
statements were not made in anticipation of legal proceedings.
Because L.P. was too young to testify, he was unavailable, and
because the statements were nontestimonial, the statements could
be admitted and were not subject to the confrontation clause.
● Bascuas notes: In exam, can say Ohio v. Clark is all dicta &
not use that case. The opinion states that the primarypurpose test is merely one of several conditions (necessary,
but not always sufficient) that must be satisfied before the
Clause's protections apply. This is incorrect but merely
dicta so it has no effect on law.
C. Hearsay under 801
1. Rule 801: what is hearsay
2. Rule 802: Hearsay is not admissible unless any of the following provides
otherwise: a federal statute; these rules; or other rules prescribed by the
Supreme Court.
3. Rule 805: Hearsay within hearsay is not excluded by the rule against
hearsay if each part of the combined statements conforms with an
exception to the rule.
4. Tome v. United States (1995)
a) Facts: Defendant and A.T.’s mother had divorced. A.T. had been
living with her father. The mother wanted custody over A.T. but
was only granted custody over the summer. Towards the end of the
summer, the mother contacted the police and told them A.T. had
been sexually assaulted by Defendant. At trial, A.T. was accused
of making up the assault. Thus, A.T. 's babysitter recited A.T.'s
statement that she did not want to return to his father because he
got drunk and thought A.T. was his wife. The mother recounted
what she heard A.T. tell the babysitter. A social worker recounted
details A.T. told her about a sexual assault.
b) Issue: Whether rule 801(d)(1)(B) requires that a prior consistent
statement admitted to rebut a charge of fabrication or improper
motive is admissible only if the statement was made before the
alleged fabrication or motive came into being.
c) Rule: A prior consistent statement admitted to rebut a charge of
fabrication or improper motive is admissible only if the statement
was made before the alleged fabrication or motive came into being.
d) Holding/Reasoning: Here, the prior statements were made after
A.T. developed a reason to lie so they were not admissible as prior
consistent statements.
5. Perry v. New Hampshire (2012)
a) Facts: The police received a report an African-american male was
breaking into cars in a parking lot in an apartment building. Officer
Clay arrived on the scene and found Perry holding two car-stereo
amplifiers. During this time, Nubia alerted her neighbor she saw
someone breaking into his car. He went down to find his car had
been broken into. Nubia informed the officers it was an Africanamerican male breaking into the cars and pointed from her window
to the parking lot at Perry who was standing with the officer. Perry
moved to suppress the identification claiming it was suggestive
and thus violated his confrontation rights.
b) Issue: Does a suggestive identification procedure violate due
process if the police are not involved in creating the suggestive
c) Rule: A suggestive identification procedure does not violate due
process if the police are not involved in creating the suggestive
d) Holding/Reasoning: When determining whether a situation is
suggestive, the court should look to the totality of the
circumstances to find if there was a “substantial likelihood of
misidentification.” The officers did not create a suggestive
situation when Nubia identified Perry in the parking lot; thus, it
does not violate Perry’s confrontation rights.
6. Bruton v. United States (1968)
a) Facts: Bruton and Evans were charged with committing armed
postal robbery. They had a joint trial. At trial, a postal inspector
testified that Evans orally confessed to him and Bruton committing
the robbery. The judge allowed the evidence but provided a
limiting instruction to the jury that the statement was inadmissible
hearsay against Bruton.
b) Issue: Whether a limiting instruction is sufficient when admitting a
confession by a defendant that incriminates the other defendant.
c) Rule: Admitting one defendant’s confession implicating a codefendant is a violation of the Sixth Amendment Confrontation
d) Holding/Reasoning: A jury cannot be expected to limit the use of a
confession only against one defendant. Although joint trials are
efficient, here, the trials should have been severed because of the
confession. A statement made by one defendant incriminating the
other defendant invokes the confrontation clause.
● Bascuas notes: Conspiracies can only end in one of two
ways: (1) With the success of the conspiracy; or (2) Failure
of the conspiracy (exp. Got arrested). Evan’s confession
was inadmissible against Brutton as a conspirator because
they got arrested so there was no longer a conspiracy.
● Bascuas notes: Options in a Bruton situation--(1) Can
redact the statement; (2) Try them separately; or (3) Don’t
use the evidence at all.
7. United States v. Gooding (1827)
a) Rule: Whatever the agent does, within the scope of his authority,
binds his principal, and is deemed his act.
8. Bourjaily v. United States (1987)
a) Facts: A government informant agreed to sell a kilogram of
cocaine to Lonardo. Lonardo said in a tape-recorded conversation
that he had a “friend” who had questions about the cocaine. The
informant then spoke to the friend and they arranged for a pickup.
The pickup proceeded as planned. The Government introduced,
over petitioner's objection, Lonardo's telephone statements
regarding the participation of the "friend" in the transaction. The
District Court found that considering the events in the parking lot
and Lonardo's statements over the phone, the Gov. had established
the conspiracy involving Lonardo and the petitioner existed, and
that Lonardo's statements over the phone had been made in the
course of an in the furtherance of the conspiracy.
b) Issue: Whether a hearsay statement that supports a conspiracy is
admissible to show the conspiracy exists.
c) Rule: A hearsay statement is admissible to show a conspiracy
d) Holding/Reasoning: To determine whether a conspiracy exists, the
Court did not have to look only at independent evidence other than
the hearsay statement--the statement could be used to figure out
whether a conspiracy existed.
● Now, the Advisory Committee took Justice Stevens’s view
in his concurrence--the hearsay statement can be used to
prove a conspiracy but there must be other evidence.
● Co-conspirator requirements:
○ Made by the co-conspirator
○ While the conspiracy was going on
○ In furtherance of the conspiracy (when narrating
things already done, not in furtherance of the
D. Unrestricted hearsay exceptions
1. Rule 803: exceptions to the hearsay rule
2. Res gestae exceptions
● Travellers’ Insurance Co. of Chicago v. Mosley (1869): Guy falls
downstairs and tells kid and wife that he fell downstairs so his head
was hurting.
○ Two statements: (1) My head hurts & symptoms (present
sense impression) & (2) fell downstairs
○ Not a dying declaration because no evidence he thought he
was going to die
a) Fischer v. Texas (2006)
(1) Facts: A trooper turned on his dashboard-mounted video
camera and announced he was pulling over a driver who
was not wearing his seatbelt. The driver admitted to having
had three wines and the trooper would then walk away and
make statements into the camera, such as the driver having
glossy eyes and smelling like alcohol. The recording was
admitted into evidence.
(2) Issue: Whether an officer's factual observations into a
recording were admissible as a present sense impression.
(3) Rule: An officer may testify in the courtroom to what he
saw, did, heard, smelled, and felt at the scene, but he cannot
substitute or augment his in-court testimony with an out-ofcourt oral narrative.
(4) Holding/Reasoning: A present sense impression of an
officer is only admissible under the stress of an ongoing
situation, such as a car chase. However, here, the situation
was calm and was not contemporaneous with the actual
event. The officer would walk from the driver to the patrol
car to make the statements into the recording; therefore,
they were not present sense impressions.
b) United States v. Boyce (2014)
(1) Facts: Sarah Portis called 911 asking the police to come to
her residence because her child's father had just hit her and
was "going crazy for no reason." The operator asked if he
had a gun, which she stated he did. Later, the officers found
a gun on him and arrested him. In trial, the attorney
introduced the 911 call to show he had a gun on him. He
appealed saying it was hearsay.
(2) Issue: Whether a 911 call is an excited utterance or present
sense impression.
(3) Rule: A 911 call that is an excited utterance if there is (1) a
startling event; (2) the declarant makes the statement under
the stress of the excitement caused by the startling event;
and (3) the declarant's statement relates to the startling
(4) Holding/Reasoning: To be a present sense impression (1)
the statement must describe an event or condition without
calculated narration; (2) the speaker must have personally
perceived the event or condition described; (3) the
statement must have been made while the speaker was
perceiving the event or condition, or immediately
thereafter. To look at the timing, the call was made right
after the event. The second issue is the statement must have
been made without calculated narration to qualify. Here,
Portis brought up the gun first. Nonetheless, this does not
need to be decided because an excited utterance is easier to
look at. An excited utterance requires (1) a startling event;
(2) the declarant makes the statement under the stress of the
excitement caused by the startling event; and (3) the
declarant's statement relates to the startling event. Here, the
startling event was the domestic battery. Next, the call was
made under the excitement of the event. Further, the
information about the gun was necessary to provide
protection. Therefore, it was an excited utterance.
c) New York v. Cummings (2018)
(1) Facts: Three men were shot by a passenger in a minivan.
One of the victims called 911 and a man in the background
is heard saying “Yo, it was Twanek, man!” The officers
arrested the driver of the minivan but the passenger was
able to get away. None of the victims could identify the
passenger. The court admitted the 911 call to provide
evidence against the defendant along with fingerprints on
the minivan and cell phone records placing him near the
(2) Issue: Whether there must be evidence that the declarant
actually observed the incident for a statement to be
admitted as an excited utterance.
(3) Rule: A statement cannot be an excited utterance if there is
no evidence the declarant watched the event.
(4) Holding/Reasoning: There is no evidence the declarant on
the phone, who is unidentified, actually observed the
shooting or whether he just heard it was Twanek who
committed the shooting. Without evidence the declarant
viewed the shooting, the statement cannot be admitted as an
excited utterance.
3. State of mind
a) Mutual Life Ins. Co. v. Hillmon (1892)
(1) Facts: Sally Hillmon took out three life insurance policies
for her husband. She sought to recover from the insurance
companies, claiming Hillmon died. At trial, the insurance
companies claimed Walters had died, not Hillmon. They
introduced evidence that Walters sent letters to his family
every week until the week that it is claimed Hillmon’s body
was found. The letter that was sought to be admitted but the
court did not allow it said that Walters was going West
with Hillmon.
(2) Issue: Whether the letters from Walters to his family of his
intention to travel with Hillmon was admissible.
(3) Rule: Out-of-court statements are admissible to prove the
declarant’s intent to perform a particular act when that act
is at issue in the case. (State of mind exception to hearsay)
(4) Holding/Reasoning: The letters were being used to show
the declarant’s state of mind (Walter’s) that he was going
West so the letter was admissible.
● Two statements: (1) I’m going West; (2) Hillmon is
going West. Used to show that Walter was going
West because uncontested that Hillmon went West.
b) California v. Alcalde (1944): professor says this rule is not correct
and to follow Hillmon.
(1) Facts: The body of Bernice was found in a plowed field.
The defendant mentioned to co-workers he was going out
with a blonde, fitting Bernice’s description, and that he had
to get rid of her before his wife got back. Before going out,
Bernice informed her roommates she was going out with a
guy named Frank (defendant’s name). The statement was
admitted in trial.
(2) Issue: Whether the trial court should have admitted the
statements from Bernice to her roommates that she was
going out with Frank.
(3) Rule: professor says: Alcalde is bad because it allowed a
previous statement by an absent declarant; whereas, Mutual
Life is good because it admitted a previous statement by a
present declarant.
(4) Holding/Reasoning: The trial court should have admitted
the statements.
● Two statements: (1) I’m going out; (2) Frank is
going out. Used to show that Frank is going out
because it was undisputed that Bernice was found
4. Routine business and public records
a. Vicksburg & Meridian RR v. O'Brien
(1) Facts: O’Brien was a seated passenger in the RR car when
she was thrown from the car and seriously injured. During
the trial, the physician was asked if he remembered the
“exact” language in the deposition, which he replied “no”
to. The judge then allowed the deposition of the physician
to be read into evidence under a recorded recollection.
(2) Issue: Whether recorded recollections are admissible as
(3) Rule: The parties can read recorded recollection into
evidence but cannot give it to the jury as an exhibit.
(4) Holding/Reasoning: The recorded recollection should not
have been read because the doctor remembered.
b. Nicholls v. Webb
(1) Facts: The plaintiff sued the defendant on a promissory
notes. The plaintiff contracted a notary to remind the
defendant he needed to pay. The court admitted into
evidence the certificate stating that the notary had notified
the defendant along with notes that the notary regularly
made on the margins stating when he gave the notice.
(2) Issue: Whether the certificate with the notary notes was
(3) Rule: Memorandums made in the regular course of
business are admissible as business records. (803(6))
(4) Holding/Reasoning: The certificate with the notes was
admissible because the notary regularly made those notes.
c. Palmer v. Hoffman (1943)
(1) Facts: Plaintiff brought a negligence suit against the
defendant’s railroad company for the death of his wife and
his own personal injuries resulting from the accident. The
RR company sought to introduce into evidence a statement
made by the engineer of the railroad company’s office, but
the engineer died before the trial. The RR company sought
to introduce the statement under a regularly conducted
business activity since the company regularly conducts
interviews of its employees after accidents.
(2) Issue: Are all statements made in the course of a business
considered a regularly conducted business activity?
(3) Rule: To be admissible under the business exception, the
document must be made in the regular course of business,
not in anticipation of litigation.
(4) Holding/Reasoning: The records following an accident are
not the regular conduct of a RR company. Unlike recording
transactions, payrolls, trip routes, etc, Interviewing
employees after an accident is not a systematic routine of
the railroad business. The RR business is in railroading, not
litigation; therefore, it is not a business exception.
d. Beech Aircraft Corporation v. Rainey (1988)
(1) Facts: There was a plane crash in which Mrs. Rainey died.
A JAG report made by the commissioner said the crash
happened because of pilot error and it contained his
conclusions. Mr. Rainey had sent a letter to the JAG report
maker and told him him why he believed the crash was a
result of the plane malfunctioning but also conceded that
Mrs. Rainey had wanted to cancel the flight the morning of
and that she knew there were some errors with the plane.
Mr. Rainey was called as an adverse witness for the
defendant’s case and when he was cross-examined,
questioning was cut off about what he thought was the most
probable cause of the crash--plane error.
(2) Issue: Whether conclusions and opinions are admissible
under 803(8)?
(3) Rule: Conclusions and opinions are admissible under
803(8) as long as the conclusion or opinion is based on the
factual investigation.
(4) Holding/Reasoning: “Factual findings” in 803(8) includes
all findings within the investigation. Therefore, there is no
distinction between fact and opinion. Furthermore, the rule
of completeness applies here because without allowing
testimony regarding the entire document to the jury, the
jury would be misled. The rule of completeness (R. 106)
requires entire documents to be read to the jury if the jury
could be misled from the redacted information.
e. Bridgeway Corp. v. Citibank (2000)
(1) Facts: Citibank operated in Liberia. They closed their
branch there and so the funds of the people who had an
account with Citibank was transferred to another bank in
Liberian. The plaintiff sued because he wanted the money
in dollars, not Liberian money. The court in Liberia said
that Citibank had to pay in dollars. Plaintiff sued in the US
to enforce the Liberia judgment but Citibank introduced
into evidence a country report to show that Liberia’s
judicial system was bad. Plaintiff argued the report was
untrustworthy and thus inadmissible under 803(8).
(2) Issue: Whether the country report was admissible under
(3) Rule: In order to fit the purview of Rule 803(8), the
evidence must (1) contain factual findings, and (2) be based
upon an investigation made pursuant to legal authority. The
burden then shifts to the opposing party to show "a lack of
● "When evaluating trustworthiness of a factual
report, we look to (a) the timeliness of the
investigation, (b) the special skills or experience of
the official, (c) whether a hearing was held and the
level to which it was conducted, and (d) possible
motivation problems." Fed. R. Evid. 803(8)(C)
advisory committee's notes.
(4) Holding/Reasoning: The report was not untrustworthy and
thus admissible. With the exception of factor c, which is
not determinative by itself, nothing about the Reports calls
into question their reliability with respect to these factors.
f. Melendez-Diaz v. Massachusetts (2009)
(1) Facts: Officers received a tip about a suspicious Kmart
employee. The employee would receive a call, be picked up
out front from a car, and then go back inside the store. The
officers observed the incident and arrested the men that
picked the employee up and the employee. One of the men
in the car was Melendez-Diaz. The officers found cocaine
on the individuals and later in the patrol car. During the
trial, the forensic analysis results were shown that the drugs
were cocaine. Melendez-Diaz argued by not having the
forensic analyst there to testify to the results, his 6th
amendment rights were violated.
(2) Issue: Whether a forensic analyst is subject to the
confrontation clause.
(3) Rule: A defendant has a right to confront any and all
witnesses against him who have testimony.
(4) Holding/Reasoning: Under the 6th amendment, the
defendant has the right to confront any witnesses that bear
testimony against him. Here, the statements are quite
clearly affidavits, which are testimonial statements.
E. Hearsay exception for unavailable declarants
1. Rule 804: when a witness is unavailable
2. Barber v. Page (1968)
a. Facts: Petitioner and Wood were jointly charged for a bank
robbery. Woods waived his privilege against self-incrimination and
gave testimony that incriminated Petitioner at a preliminary
hearing. Petitioner’s attorney did not cross-examine but the
attorney for another co-defendant did. When Petitioner went to
trial, Woods was incarcerated outside the court’s jurisdiction. The
State proposed to introduce against petitioner the transcript of
Woods' testimony at the preliminary hearing on the ground that
Woods was unavailable to testify because he was outside the
jurisdiction. The transcript was admitted.
b. Issue: Whether a witness is unavailable under 804 when he is in
prison in another jurisdiction than the one where the trial is held.
c. Rule: A witness is unavailable for purposes of the Confrontation
Clause exception (r. 804) only when prosecutorial authorities have
made a good-faith effort to obtain his presence at trial.
● Bascuas: Good-faith effort = same effort prosecutors would
have used if they wanted to use a witness for trial.
d. Holding/Reasoning: The prosecution did not make a good-faith
effort to get the witness to trial so the transcript was inadmissible.
For prospective witnesses currently in federal custody, under 28
U.S.C. S. 2241(c)(5), federal courts have the power to issue writs
of habeas corpus ad testificandum at the request of prosecutorial
authorities. In addition, it has been the policy of the United States
Bureau of Prisons to permit federal prisoners to testify at criminal
proceedings pursuant to writs of habeas corpus ad testificandum
issued out of state courts.
● Did not waive right to cross-examine at preliminary hearing
because there is no incentive to cross-examine there since
it might give away your strategy.
3. Giles v. California (2008)
a. Facts: Giles shot his girlfriend, Avie, and killed her. Giles’ niece
heard the two screaming and the gunshots, but did not watch the
shooting. Giles was later arrested. At trial, Giles claimed selfdefense by describing Avie as a jealous and violent girlfriend. The
prosecution sought to admit statements by Avie to police during a
prior DV incident where Avie told officers Giles hit her. The
evidence was allowed in because of an exception that Giles
forfeited his right to confront Avie by murdering her.
b. Issue: Does a defendant always forfeit his 6th amendment right
when a wrongful act of the defendant made the witness unavailable
to testify?
c. Rule: A defendant only forfeits his right to confront a witness
when the bad act is intended to prevent the witness from testifying.
d. Holding/Reasoning: There are two forms of testimonial statements
that are admissible without confrontation: dying declarations and
forfeiture by wrongdoing. However, to forfeit by wrongdoing, the
defendant must have intended to keep the witness from testifying.
Here, there is no evidence the murder was intended to keep Avie
from testifying or speaking to law enforcement about the DV;
therefore, admitting the statements Avie made violated Giles 6th
amendment right.
● Bascuas notes:
○ Best argument non-testimonial: The physical abuse
continues so it is an ongoing emergency.
○ Best argument testimonial: not an ongoing
emergency because chose to stay at home.
4. United States v. McKeeve (1997)
a. Facts: Defendant attempted to export computer equipment from the
US to Libya but the US had lots of restrictions with sending stuff
to Libya. Defendant spoke to a British customs agent who told him
about the restrictions, but he still continued to try to send the
equipment anyway. He got caught. The agent could not go to
testify so the government offered to fly out the defendant and
attorney to get the agent’s deposition but couldn’t because the UK
was not willing to temporarily detain Defendant. Instead,
Defendant’s attorney was flown out and Defendant was given two
phone lines, one to listen to the depo and one to talk to the
attorney. A transcript was made but Defendant objects to its
admission at trial.
b. Issue: Whether Redpath's deposition accounted to "former
testimony" within the purview of Fed. R. Evid. 804(b)(1).
c. Rule: Under Rule 804(b)(1), where a deposition is taken in a
foreign country, unless the manner of the examination required by
the law of the host nation is so incompatible with fundamental
principles of fairness or so prone to inaccuracy or bias as to render
the testimony unreliable, a deposition taken according to the laws
of the host country is 'in compliance with the law.
d. Holding/Reasoning: The transcript was admissible. The appellant's
objection is that the method of transcribing and proceeding was
"slow and inexact." However, this complaint must be balanced
against the dominant characteristics of the deposition, such as the
administration of the oath; unlimited direct and cross-examination;
the ability to lodge objections; oversight by a judicial officer; the
compilation of the transcript by a trained solicitor; and a lack of
language barrier.
5. Shepard v. United States (1933)
a. Facts: Shepard was charged with murdering his wife. During trial,
the prosecution sought to introduce into evidence a statement by
Shepard’s wife to her nurse stating that she believed her husband
had poisoned her. The court allowed it in as a dying declaration.
b. Issue: Whether a dying declaration must be imminent?
c. Rule: To be a dying declaration, the declarant must be dying
shortly after the statement and has no hope of recovering.
d. Holding/Reasoning: For a dying declaration to be admissible as an
exception to the hearsay rule, the person making it must expect to
die soon and have no hope of recovery. In addition, the declaration
must be made with knowledge of facts, not mere suspicion or
conjecture. Here, there is no evidence Shepard’s wife believed she
was going to do it. In fact, she stayed alive for another week
following that statement. Furthermore, she had no knowledge her
husband had actually poisoned her, only suspicion he had.
● Bascuas notes: Can’t come in as state of mind because she
was not talking about her symptoms, she was talking about
what she did in the past.
F. Residual hearsay exceptions
1. Rule 807: catch-all-hearsay exception
2. United States v. Ramirez-Lopez (2003)
a. Facts: Ramirez-Lopez was arrested with fourteen others who
crossed the border from Mexico to the United States. RamirezLopez was interviewed while in the hospital as were the members
of the group. Ramirez-Lopez waived his Miranda rights during the
interview as well as his Lujan-Castro right to retain otherwise
deportable witnesses. During the interview, he denied being the
leader of the group. In the interviews of other members, two
members claimed Ramirez-Lopez was the leader while the others
claimed he was not. The border patrol returned all but five of the
witnesses. Of the five, three stated Ramirez-Lopez was not the
guide and two claimed he was. All five testified at trial. RamirezLopez claimed this violated his due process rights by not allowing
all fourteen witnesses to testify or allowing the notes taken by
border patrol agents during the interviews to be admitted at trial.
b. Issue: 1) whether Ramirez-Lopez's due process rights were
violated when the government removed the witnesses before trial;
2) whether the Border Patrol notes taken during the interviews of
the witnesses could be admitted as evidence under 807.
c. Rule: Hearsay evidence sought to be admitted under Rule 807 must
have circumstantial guarantees of trustworthiness equivalent to the
listed exceptions to the hearsay rule. Further, the statements must
(1) be evidence of a material fact; (2) be more probative on the
point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; (3) serve the
general purposes of the Rules of Evidence and the interests of
justice by its admission into evidence.
d. Holding/Reasoning: 1) Due process: To show due process
Ramirez-Lopez must satisfy 1) an initial showing that the
government acted in bad faith; and 2) that this conduct resulted in
prejudice to Ramirez-Lopez's case. To establish prejudice
Ramirez-Lopez must satisfy the prong in Dring. To satisfy this
prong, Ramirez-Lopez must at least make a plausible showing that
the testimony of the deported witnesses would have been material
and favorable to his defense, in ways not cumulative to the
testimony of the available witnesses. Ramirez-Lopez was aided by
the testimony of three witnesses who claimed he was not the guide,
adding more witnesses would have been cumulative. 2) 807: the
statements must 1) be evidence of a material fact; 2) be more
probative than any other evidence; and 3) serve the general
purposes of the rules of evidence and the interests of the justice
system. To be admissible under 807, the statements also must have
circumstantial guarantees of trustworthiness equivalent to the listed
exceptions to the hearsay rule. Here, there was no evidence the
statements were trustworthy as they were not taken under oath or
by attorneys.
The judgment was later vacated. The dissent and Bascuas
argue that there was a due process violation because
Ramirez-Lopez was not able to speak to an attorney or
judge before the witnesses were deported, which is unfair
to him. Then, after wrongfully deporting the witnesses, the
court then did a “gotcha” by not allowing the interview
notes to be admitted into evidence. By not allowing all
witnesses to testify, the jury was misled as they did not get
the full picture that only two of the fourteen witnesses
found Ramirez-Lopez to be the guide.
G. Lay opinion testimony:
1. Rule 701: Opinion witness came to through common sense
H. Expert witnesses
2. Rule 702: expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion
3. Rule 703: makes inadmissible evidence, from which an expert drew a
conclusion, admissible if the probative value of the evidence substantially
outweighs the prejudicial effect.
4. Rule 704: An expert's opinion is not objectionable just because it
embraces an ultimate issue. However, in a criminal case, the expert cannot
say whether the defendant has a mental state or condition that constitutes
an element of the crime.
5. Rule 705: an expert can testify to an opinion and give the reasons for that
opinion without first testifying to the facts or data.
6. Kumho Tire v. Carmichael (1999)
a. Facts: The plaintiff’s tire blew out. The “expert” in that case was
going to testify that the reason the tire blew out was because of a
manufacturing defect based on a two-factor test he came up with
that could be analyzed by just looking at the tire. Trial court took
into account the 4 Daubert factors and excluded the testimony.
b. Issue: Whether and how Daubert applies to expert testimony that
might be characterized as based not on "scientific" knowledge but
on "technical" or "other specialized" knowledge.
c. Rule: expert opinions are admissible only if they are reliable and
relevant. To determine reliability of a particular "theory or
technique," the court may consider factors such as testing, peer
review, error rates, and "acceptability" in the relevant scientific
d. Holding/Reasoning: The trial court has discretion to take different
factors into account to consider whether expert testimony is
admissible. Here, the method that the expert relied on was not
replicable so not reliable.
7. Williams v. Illinois (2014)
a. Facts: Defendant was charged with rape. The prosecution called an
analyst to testify about the DNA profile created by a different
company, Cellmark, and how it matched the defendant’s DNA.
She did not testify how Cellmark created the profile. Williams was
b. Issue: Whether Crawford bars an expert from testifying about facts
that the expert learned from someone else and that the expert relied
on in making a conclusion.
c. Rule: An expert may testify to facts that the expert learned in order
to make his/her conclusion.
d. Holding/Reasoning: There was no Confrontation Clause issue
because the expert was not speaking about the report for its truth
and even if the report had been admitted for its truth, the
Confrontation Clause does not apply because the primary purpose
in making the report was not to inculpate the defendant.
● This is a plurality opinion so nothing held is binding other
than facts experts rely on are hearsay.